This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Kimberly L. Gatzke,



Scott Campbell, et al.,


Filed December 9, 1997


Norton, Judge

Hennepin County District Court

File No. EM-95-006877

Nicholas P. Granath, Patrick M. O'Donnell, Granath & O'Donnell, P.A., Firstar Bank Building, Suite 310, 8800 West Highway 7, St. Louis Park, MN 55426 (for Respondent)

Richard A. Beens, Katherine A. Jones, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Avenue South, Suite 4200, Minneapolis, MN 55402-4302 (for Appellants)

Considered and decided by Willis, Presiding Judge, Norton, Judge, and Schumacher, Judge.



Appellants Scott Campbell, et al. (Campbell), claim the district court erroneously ruled respondent Kimberly L. Gatzke was subjected to sexual harassment by Campbell and should have granted his posttrial motion for amended findings or, in the alternative, a new trial. Gatzke seeks dismissal of the appeal and claims the trial court lacked jurisdiction to consider Campbell's posttrial motion. The district court did not err in ruling that Campbell subjected Gatzke to sexual harassment. Campbell's appeal and posttrial motion were not defective. Gatzke has waived her challenge to the district court's award of costs and fees. We affirm.


After Campbell discharged Gatzke from her employment, Gatzke sued Campbell, alleging, among other things, quid pro quo sexual harassment in violation of the Minnesota Human Rights Act (MHRA). The MHRA claims were tried to the court with an advisory jury. Campbell prevailed on non-MHRA claims, but, based on an internally inconsistent special verdict form returned by the jury, the trial court awarded Gatzke judgment on the MHRA claims. Thereafter, the trial court denied Campbell's motion for amended findings or a new trial and granted in part respondent's motion for costs and fees.


1. Jurisdiction

Gatzke seeks dismissal of the appeal, alleging Campbell's appeal papers do not identify the document being appealed or the issues to be raised on appeal. Because the appeal was filed more than 90 days after entry of judgment, the appeal cannot be from the judgment. See Minn. R. Civ. App. P. 104.01 (time to appeal judgment is 90 days from entry); Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983) ("[t]ime limits on appeals are jurisdictional").

The record does not show that Gatzke served Campbell with written notice of filing of the order denying Campbell's motion for a new trial. Therefore, because the time to appeal that order never expired, we construe the appeal to be from that document. See Minn. R. Civ. App. P. 103.03(d) (order denying new trial is appealable); Minn. R. Civ. App. P. 104.01 (time to appeal order is 30 days after service by adverse party of written notice of filing of order); Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn. App. 1989) (where record did not show service of notice of filing, order four years old was appealable); see generally, Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985) (notices of appeal are liberally construed in favor of their sufficiency and are not deficient due to defects which could not have been misleading).

On appeal from an order denying a new trial, review is limited to issues raised in the new trial motion. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986). Here, Campbell's new trial motion sought relief based on trial court error and sufficiency of the evidence under Minn. R. Civ. P. 59.01(f), (g).

Gatzke also claims the trial court lacked jurisdiction to hear Campbell's posttrial motion because the hearing on his motion occurred more than 30 days after Campbell knew judgment had been entered. See Minn. R. Civ. P. 59.03 (absent "good cause," new trial motions "shall be" heard within 30 days of service of notice of filing). The time limit for hearing new trial motions is not jurisdictional. Imperial Developers, Inc. v. Seaboard Sur. Co, 518 N.W.2d 623, 628 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994). In addition, the record does not show that Gatzke served Campbell with notice of filing. We must reject her claim that the affidavit of identification of judgment debtor, which she did serve and file, is an adequate substitute. Neither the affidavit nor its cover letter (a) identifies itself as a notice of filing; (b) identifies the document filed or date of filing; or (c) informs Campbell his time for posttrial relief is limited. See Rieman v. Joubert, 376 N.W.2d 681, 683-84 n.1 (Minn. 1985) (notice of filing should be a separate paper, properly captioned, and describe what was filed and when; cautious counsel will "add that the notice is served to limit the time for further posttrial relief").

2. Sexual Harassment

Campbell contends the trial court's rulings on the MHRA claims are based on errors of law and on findings that are unsupported by the evidence. The decision to grant a new trial rests in the discretion of the trial court. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). On appeal from an order denying a motion for a new trial, we view the evidence in the light most favorable to the verdict and will affirm the verdict "unless it is manifestly and palpably contrary to the evidence." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

The jury sat in an advisory capacity on the MHRA claim. See Minn. Stat. § 363.14, subd. 2 (1994) (requiring MHRA claims to be determined by court); Minn. R. Civ. P. 39.02 (allowing court to try case with advisory jury). The advisory jury made contradictory findings; it found that Gatzke had not been "subjected to sexual advances" by Campbell, but also found that Campbell's sexual advances were "unwelcome." The trial court was not bound by the findings of the advisory jury. Shea v. Hanna Mining Co., 397 N.W.2d 362, 370 (Minn. App. 1986). Here, after considering the special verdict form, the trial court ruled for Gatzke.

Under the MHRA, unwelcome sexually oriented conduct or communication constitutes sexual harassment if acceptance thereof is a condition of obtaining employment or if the acceptance or rejection of the conduct or communication is used in decisions about a person's employment. Minn. Stat. § 363.01, subd. 41 (1994). On appeal, Campbell's arguments challenge the determinations of the jury and the trial court regarding the weight and credibility of the evidence. We defer to the factfinder's determinations on the weight and credibility of evidence; that deference is heightened in employment discrimination cases. See Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (appellate courts give extensive deference to fact-finder's determinations on weight and credibility of evidence); Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) (appellate court's deference to fact-finder's determinations on weight and credibility is particularly important in employment discrimination cases because they often involve "intricate factual issues in which only the trial court, with its opportunity to observe the witnesses firsthand, can meaningfully assess the weight and credibility of the evidence") (emphasis added).

Campbell argues his advances toward Gatzke were not unwelcome. Gatzke, however, testified to the contrary. Campbell also claims his conduct was not unwelcome because Gatzke and bar staff engaged in off-color humor. Gatzke's testimony, however, explained the circumstances of the humor in question. The fact that Gatzke and the bar staff made off-color jokes does not require us to infer that Gatzke welcomed Campbell's advances.

Campbell contends he presented legitimate non-discriminatory business reasons for firing Gatzke. The trial court, however, found Campbell's stated reasons for terminating Gatzke not to be credible and explained its rationale. The record supports these findings. Because the trial court's findings and explanation are not clearly erroneous and because we must defer to the trial court's ability to weigh the evidence and credibility of the witnesses, we affirm the trial court's ruling on Gatzke's MHRA claims.

3. Costs and Fees

In her notice of review, Gatzke contends the trial court abused its discretion by awarding her only part of her attorney fees. Because Gatzke's brief does not address this claim, however, she waived the issue. See J.A.V. v. Velasco, 536 N.W.2d 896, 901 (Minn. App. 1995) (this court will not consider issue that party raised in notice of review but failed to brief), aff'd, 547 N.W.2d 374 (Minn. 1996); see also Wilson v. Moline, 234 Minn. 174, 179, 47 N.W.2d 865, 868 (1951) (court considers abandoned any assignments of error not argued in brief).